The revision of the Posting of Workers Directive and the freedom to provide services in EU: towards a dead end?

• Author: Sónia de Carvalho
• Position: Department of Law, Portucalense Infante D. Henrique University; Researcher at IJP - Portucalense Institute for Legal Research, Porto, Portugal, scarvalho@upt.pt.
• Pages: 111-125

The revision of the Posting of Workers Directive and the freedom

to provide services in EU: towards a dead end?

Assistant professor Sónia De CARVALHO1

Abstract

The development of the internal mar ket, based on the principle of freedom to

provide services, a s stated in a rticle 56 TFEU, ren dered common the posting of workers to

another EU Member State. The risk of leading to social dumping in the host Member State,

resulting from the less favourable working conditions of the sendin g Member State,

justified Directive 96/71/EC. Collective barg aining, which has always taken on a

prominent place in the posting of workers fra mework provided for in Directive 96/71/EC, is

clearly r einforced by Directive (EU) 2018/957 tha t amended Directive 96/71/EC. The case-

law of the CJEU, however, ha s revealed that in so me cases the enforcement of the host

Member State working conditions, in view of the lack of harmonization of labour law in the

Member States in relation to minimum protection mandator y rules, can pa radoxically

constitute a restriction on the freedom to pr ovide services. The a nalysis of the amendments

introduced by the Directive (EU) 201 8/957 will demonstra te that, despite cr eating a

favourable legislative framework for fair competitive conditions between national

underta kings and the under takings that post workers, may compromise the delicate ba lance

between the protection of workers and the freedom to provide services.

Keywords: Directive (EU) 2018/957, posting of workers, freedom to provide services,

Europea n Union.

JEL Classification: K31, K33.

1. Introduction

Collective bargaining, which has always taken on a prominent place in the

posting of workers in the framework of the provision of services under Directive

96/71/EC, is reinforced by Directive 2018/957/EU. 2

The regulation of the posting of workers through Directive 96/71/EC and

the announced revision of the Directive are intended to combat social dumping

1 Sónia de Carvalho - Department of Law, Portucalense Infante D. Henrique University; Researcher at

IJP - Portucalense Institute for Legal Research, Porto, Portugal, scarvalho@upt.pt.

2 The Commission Work Programme 2016 states as purpose “ to address unfair pra ctices leading to

social dumping and bra in drain by ensuring that the same work in the same place is rewar ded by the

same pay”, available at https://ec.europa.eu/info/ sites/info/files/cwp_2016_en_0.pdf (consulted on

5.10.2018). This idea is stressed in the Political Guidelines for the next European Commission,

available at https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guidelines-

speech_en.pdf. The ground of this directive is th e Proposal for a Directive of the European

Parliament and of the Council amending Directive 96/71/EC of The European Parliament and of the

Council of 16 December 1996 concerning the posting of workers in the framework of the pro vision

of services COM/2016/0128 final - 2016/070 (COD) fulfilling the Political Guidelines and th e Work

Programme 2016, available at https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=

CELEX:52016PC0128&from=EN (consulted on 5.10.2018).